IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SISTER MICHAEL MARIE, et al., 

 

 Plaintiffs, 

 

 vs. Case No. 2:11-cv-474 

 Judge Watson 

 Magistrate Judge King 

AMERICAN RED CROSS, et al., 

 

 Defendants. 

OPINION AND ORDER 

 This matter is before the Court on the Motion of Plaintiffs for 

Sanctions and/or Extension of the Discovery Cut-Off Period and the 

Dispositive Motion Date (“Plaintiffs’ Motion for an Extension or 

Sanctions”), Doc. No. 89, on the response of defendants American Red 

Cross and Mary McCord, Doc. No. 96, and on plaintiffs’ reply, Doc. No. 

109. Also before the Court is the February 19, 2013 Motion of 

Plaintiffs for Extension of Time to Respond to Motions for Summary 

Judgment and for Extension of Discovery Cut-Off Period (“Plaintiffs’ 

Rule 16(b) and 56(d) Motion”), Doc. No. 97, the response of defendants 

Ross County Emergency Agency and David Bethel, Doc. No. 100, and 

plaintiffs’ reply, Doc. No. 104. Plaintiffs’ Rule 16(b) and 56(d) 

Motion was filed on February 19, 2013. Defendants American Red Cross 

and Mary McCord (collectively the “ARC defendants”) also filed a 

response to that motion, but not until on March 19, 2013. See Doc. 

No. 106. The ARC defendants’ response will not be considered by the 

Court because it was not filed within the time permitted by the local 

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rules of this Court. See S.D. Ohio Civ. R. 7.2 (“Any memorandum in 

opposition shall be served within twenty-one (21) days from the date 

of service set forth in the certificate of service attached to the 

Motion.”). 

 For the reasons that follow, plaintiffs’ motions are DENIED. 

I. Background 

 Plaintiffs Sister Michael Marie and Sister Mary Cabrini 

originally asserted claims against Ross County Emergency Management 

Agency and David Bethel (collectively the “RCEMA defendants”) and the 

ARC defendants under 42 U.S.C. § 1983, Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e et seq., and Ohio Revised Code §§ 

4112.02, 4112.99, alleging discrimination, harassment and retaliation 

based on plaintiffs’ religion. Following the original preliminary 

pretrial conference, the Court, in consultation with counsel, 

established a discovery completion date of August 30, 2012 and a 

dispositive motions filing date of September 30, 2012. Preliminary 

Pretrial Order, Doc. No. 26. The Court also advised the parties “that 

the discovery completion date requires that discovery requests be made 

sufficiently in advance to permit timely response by that date.” Id. 

 On August 23, 2012, plaintiffs filed a motion to extend the 

discovery and dispositive motions deadlines. Motion of Plaintiffs to 

Amend Discovery Deadline, Doc. No. 55. On September 19, 2012, the 

Court concluded that plaintiffs had failed to show good cause for the 

requested extension but nevertheless granted the motion in part and 

extended the discovery completion and dispositive motions deadlines to 

October 30, 2012 and November 29, 2012, respectively. Order, Doc. No. 

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60. However, the Court limited discovery conducted after August 30, 

2012 to that requested by the parties by August 30, 2012. Id. The 

Court also advised the parties that there would be no further 

extension of the discovery completion deadline. Id. 

 Notwithstanding that warning, the ARC defendants thereafter filed 

a consent motion to extend the date by which depositions must be 

completed. Consent Motion to Extend Time to Complete Depositions, 

Doc. No. 64. The Court granted that motion, extending the discovery 

and dispositive motions deadlines to December 14, 2012 and January 13, 

2013, respectively. Order, Doc. No. 69. The Court again advised the 

parties that there would be no further extension of the discovery 

completion deadline or of the summary judgment deadline. Id. The 

Court also denied plaintiffs’ motion to compel, Doc. No. 65, and 

amended motion to compel, Doc. No. 66, as moot because plaintiffs had 

agreed to withdraw the motions should the Consent Motion to Extend 

Time to Complete Depositions be granted. See Order, Doc. No. 69. 

 The parties jointly filed yet another motion to extend the 

discovery and dispositive motions deadlines on December 14, 2012. 

Joint Motion to Extend Time to Complete Discovery and File Dispositive 

Motions, Doc. No. 73. The Court denied that motion on December 17, 

2012, reasoning that the parties had failed to establish good cause to 

modify the scheduling order. Order, Doc. No. 74. 

 On January 14, 2013, the RCEMA defendants filed a motion for 

summary judgment, Doc. No. 85, the ARC defendants filed a motion for 

summary judgment, Doc. No. 87, and plaintiffs filed Plaintiffs’ Motion 

for an Extension or Sanctions. On February 19, 2013, plaintiffs filed 

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Plaintiffs’ Rule 16(b) and 56(d) Motion. Plaintiffs’ motions seek (1) 

sanctions under Rule 37(b)(2)(A) in connection with the ARC 

defendants’ alleged failure to comply with the Court’s discovery 

orders, (2) an extension of the discovery completion and dispositive 

motions deadlines pursuant to Rule 16(b), and (3) an extension of the 

discovery completion deadline and of the date by which plaintiffs must 

respond to defendants’ motions for summary judgment pursuant to Rule 

56(d).1

 

II. Discussion 

 A. Rule 37(b)(2)(A) 

Plaintiffs seek sanctions in the form of attorneys’ fees and 

costs and a grant of default judgment against the ARC defendants under 

Fed. R. Civ. P. 37(b)(2)(A) in connection with defendants’ alleged 

failure to comply with the Court’s discovery orders. Plaintiffs’ 

Motion for an Extension or Sanctions, pp. 13-16. Rule 37(b) of the 

Federal Rules of Civil Procedure authorizes the imposition of 

sanctions in connection with a party’s “fail[ure] to obey an order to 

provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). A court 

may issue such orders as are just, including, inter alia, orders 

“rendering a default judgment against the disobedient party” or 

“treating as contempt of court the failure to obey any order except an 

order to submit to a physical or mental examination.” Fed. R. Civ. P. 

37(b)(2)(A)(vi), (vii). 

Plaintiffs argue that the ARC defendants failed to comply with 

the Court’s orders “require[ing] that the ARC Defendants provide the 

 

1

 On that same date, plaintiffs in fact filed responses to the motions for 

summary judgment. Doc. Nos. 98, 99. 

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identified ARC employees for depositions and require[ing] that the ARC 

Defendants fully respond to the written discovery requests of 

Plaintiffs.” Id. at p. 13. Plaintiffs have not, however, referred to 

an order of this Court that specifically required such discovery. The 

Court’s discovery orders, Doc. Nos. 60, 69, 74, simply extended the 

discovery completion date and limited the scope of discovery permitted 

after August 30, 2012. The Court did not order any party to conduct 

particular discovery. Rule 37(b) sanctions are therefore not 

warranted. See Sokos v. Hilton Hotels Corp., 283 F.Supp.2d 42, 55 

(D.D.C. 2003) (“First, it was readily apparent that the plaintiff was 

unable to seek sanctions against the defendants pursuant to Rule 

37(b)(2) because the rule only provides a remedy to a party in 

circumstances when the opposing party fails to comply with a court 

order to provide discovery. Thus, since the Court had not issued an 

order to redress a discovery violation committed by the defendants, 

the plaintiff's counsel could not seek any relief under this rule.”). 

 B. Rule 16(b) 

 Plaintiffs’ motions also seek an extension of the discovery and 

dispositive motions deadlines – by an indeterminate period - “to 

enable Plaintiffs to conduct discovery, including discovery beyond the 

limited discovery which was initially ordered by the Court.” 

Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 16. See also Plaintiffs’ 

Motion for an Extension or Sanctions, p. 16. Specifically, plaintiffs 

seek to depose four identified individuals, to depose otherwise 

unidentified “additional parties,” and to secure documents that had 

been requested of the ARC defendants but which had allegedly neverbeen 

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produced. Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 16. Plaintiffs 

argue that defendants will not be prejudiced by an extension of the 

discovery completion and dispositive motions deadlines, that the ARC 

defendants failed to fully respond to discovery requests and to 

produce employees for depositions, and that the Court’s limitation on 

discovery penalizes plaintiffs. 

Rule 16(b) of the Federal Rules of Civil Procedure requires that 

the Court, in each civil action not exempt from the operation of the 

rule, enter a scheduling order that limits the time to, inter alia, 

complete discovery and file motions. Fed. R. Civ. P. 16(b)(1), 

(b)(3)(A). The rule further provides that “[a] schedule may be 

modified only for good cause and with the judge’s consent.” Fed. R. 

Civ. P. 16(b)(4). See also S.D. Ohio Civ. R. 16.2 (“[T]he Magistrate 

Judge is empowered to . . . modify scheduling orders upon a showing of 

good cause.”). “‘The primary measure of Rule 16’s ‘good cause’ 

standard is the moving party’s diligence in attempting to meet the 

case management order’s requirements.’” Inge v. Rock Fin. Corp., 281 

F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 

F.3d 807, 809 (8th Cir. 2001)). “A district court should also 

consider possible prejudice to the party opposing the modification.” 

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th 

Cir. 2005) (citing Inge, 281 F.3d at 625). The focus is, however, 

“primarily upon the diligence of the movant; the absence of prejudice 

to the opposing party is not equivalent to a showing of good cause.” 

Ortiz v. Karnes, 2:06-cv-562, 2010 WL 2991501, at *1 (S.D. Ohio July 

26, 2010) (citing Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 

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1995)). Whether to grant leave under Rule 16(b) falls within the 

district court’s discretion. Leary v. Daeschner, 349 F.3d 888, 909 

(6th Cir. 2003). 

The Court notes, initially, that the motions presently before the 

Court are the parties’ fourth and fifth requests for an extension to 

the discovery deadline. See Doc. Nos. 55, 64, 73, 89, 97. The 

present motions set forth the progression of plaintiffs’ discovery 

efforts and the Court’s discovery orders from plaintiffs’ initial 

August 9, 2012 discovery request through the filing of the present 

motions. See Plaintiffs’ Motion for an Extension or Sanctions, pp. 1-

16; Plaintiffs’ Rule 16(b) and 56(d) Motion, pp. 1-16. Plaintiffs 

essentially reargue the previous motions to extend the discovery 

deadline by providing a supplemented recitation of the facts 

previously presented to the Court. Plaintiffs also argue that the 

Court’s September 19 and December 17, 2012 orders are unfair.2

 

The Court’s September 19, 2012 order extended the discovery and 

dispositive motions deadlines and limited discovery conducted after 

August 30, 2012 to the written discovery and depositions requested by 

the parties on or before August 30, 2012. Order, Doc. No. 60. 

Plaintiffs argue that the September 2012 order unfairly limited 

plaintiffs’ ability “to obtain discovery in regard to their claims 

against the RCEMA Defendants” by limiting discovery of the RCEMA 

defendants to a single deposition. Plaintiffs’ Rule 16(b) and 56(d) 

Motion, pp. 14-15. Plaintiffs further argue that the September 2012 

 

2

 Plaintiffs did not file objections to the September 19 or December 17, 2012 

orders. See Fed. R. Civ. P. 72(a). 

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order “make[s] it impossible for Plaintiff[s] to adequately oppose 

Defendants’ Motion for Summary Judgment.” Id. at p. 14. See also id. 

at p. 5 (“The Court’s order limited and hampered Plaintiffs’ ability 

to prepare their case and to obtain discovery at a time when a motion 

to dismiss was pending . . . .”). Plaintiffs now seek to extend the 

discovery completion deadline and to permit discovery beyond what had 

been requested on or before August 30, 2012. Id. at p. 16. 

The Court’s September 2012 order limited discovery because 

plaintiffs had failed to show good cause for the requested 

modification of the scheduling order. See Order, Doc. No. 60, pp. 2-

3. Despite being advised in the Preliminary Pretrial Order, Doc. No. 

26, “that the discovery completion date requires that discovery 

requests be made sufficiently in advance to permit timely response by 

that date,” id. at p. 2, plaintiffs waited until August 9, 2012, i.e., 

three weeks before the discovery deadline, to seek discovery from the 

RCEMA defendants. Order, Doc. No. 60, p. 2; Plaintiffs’ Rule 16(b) 

and 56(d) Motion, p. 4. The Court noted plaintiffs’ failure in this 

regard and limited discovery accordingly. See Order, Doc. No. 60, pp. 

2-3. Plaintiffs have not persuaded the Court that the September 2012 

order was erroneous or that the facts now establish good cause to 

further modify the pretrial schedule. Any limitation in the parties’ 

ability to seek discovery is a direct result of their own failures to 

diligently pursue discovery during the initial discovery period. 

The Court’s December 17, 2012 order denied the parties’ joint 

motion to extend the discovery completion and dispositive motions 

filing deadlines, Doc. No. 73. Order, Doc. No. 74. Plaintiffs argue 

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that the December 2012 order “penalizes Plaintiffs (who have fully 

cooperated in this discovery process) . . . [and] enabl[es] the ARC 

Defendants to prevent Plaintiffs from obtaining discovery needed to 

prove their claims.” Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 15. 

The order also “make[s] it impossible for Plaintiff[s] to adequately 

oppose Defendants’ Motions for Summary Judgment” and “[e]ffectively . 

. . determines this case in favor of the Defendants.” Id. at pp. 14-

15. See also Plaintiffs’ Motion for an Extension or Sanctions, p. 15. 

The Court denied the parties’ joint motion to extend the 

discovery completion and dispositive motions filing deadlines because 

the parties had failed to show good cause for the requested extension. 

See Order, Doc. No. 74, p. 2. Notably, the parties had been advised 

on two prior occasions that there would be no further extension of the 

discovery completion deadline. See Order, Doc. No. 60; Order, Doc. 

No. 69. Plaintiffs have not persuaded the Court that the December 

2012 order was erroneous or that plaintiffs have now shown good cause 

to modify the pretrial schedule. 

Under all these circumstances, the Court concludes that 

plaintiffs have failed to establish good cause for yet another 

extension of the discovery completion and dispositive motions filing 

dates. See Fed. R. Civ. P. 16. 

 C. Rule 56(d) 

Plaintiffs’ Rule 16(b) and 56(d) Motion also seeks an extension, 

for an indeterminate period, to respond to defendants’ motions for 

summary judgment and to conduct discovery. 

 Rule 56(d) of the Federal Rules of Civil Procedure establishes 

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the proper procedure to be followed when a party concludes that 

additional discovery is necessary to respond to a motion for summary 

judgment: 

When Facts Are Unavailable to the Nonmovant. If a 

nonmovant shows by affidavit or declaration that, for 

specified reasons, it cannot present facts essential to 

justify its opposition, the court may: 

 (1) defer considering the motion or deny it; 

 (2) allow time to obtain affidavits or declarations or to 

take discovery; or 

 (3) issue any other appropriate order. 

Fed. R. Civ. P. 56(d). The affidavit or declaration required by the 

rule must “indicate to the district court [the party’s] need for 

discovery, what material facts [the party] hopes to uncover, and why 

[the party] has not previously discovered the information.” Cacevic 

v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing 

Radich v. Goode, 866 F.2d 1391, 1393-94 (3d Cir. 1989)). Rule 56(d) 

will not serve to shield parties who were dilatory in conducting the 

necessary discovery. Mallory v. Noble Corr. Inst., 45 F. App’x 463, 

469 (6th Cir. 2002) (citing Schaffer v. A.O. Smith Harvestore Prods., 

Inc., 74 F.3d 722, 732 (6th Cir. 1996)). A motion under Rule 56(d) 

may be properly denied where the requesting party “̔makes only general 

and conclusory statements [in its affidavit] regarding the need for 

more discovery and does not show how an extension of time would have 

allowed information related to the truth or falsity of the 

[information sought] to be discovered,’” Ball v. Union Carbide Corp., 

385 F.3d 713, 720 (6th Cir. 2004) (quoting Ironside v. Simi Valley 

Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the affidavit 

“lacks ‘any details’ or ‘specificity.’” Id. (quoting Emmons v. 

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McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)). The importance of 

complying with Rule 56(d) cannot be over-emphasized. See Cacevic, 226 

F.3d at 488. Finally, whether or not to grant a request for 

additional discovery falls within the trial court’s discretion. 

Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009). 

 In the case presently before the Court, plaintiffs have submitted 

the Certification and Declaration of Attorney Thomas I. Blackburn in 

support of their Rule 56(d) motion. See Plaintiffs’ Rule 16(b) and 

56(d) Motion, p. 17. Attorney Blackburn certifies that he “repeatedly 

. . . communicated with” counsel for the ARC defendants “in an attempt 

to schedule the depositions of Michael Carroll, Teals J. Brewer, Bill 

Malfara and Bill Maltz.” Id. However, Brewer’s deposition was 

cancelled by the ARC defendants, the ARC defendants did not provide a 

date on which to depose Bill Malfara, and did not provide last known 

addresses for Michael Carroll and Bill Maltz until the last day of the 

discovery completion period. Id. Attorney Blackburn also avers that 

Mary McCord and David Gore possess “written and electronic documents 

which, while requested, were not produced by the ARC Defendants.” Id. 

According to Attorney Blackburn, counsel for the ARC defendants 

“stated that he would look into whether such testified-to-documents 

actually existed,” but that he “never got back” to Attorney Blackburn. 

Id. Finally, Attorney Blackburn “declares that the depositions of 

those witnesses identified above, as well as depositions of additional 

parties and the receipt of requested, but not produced documents, are 

needed for Plaintiffs to adequately respond to Defendants’ Motions for 

Summary Judgment.” Id. 

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 Attorney Blackburn’s Certification and Declaration is 

insufficient to support a Rule 56(d) motion. First, Attorney 

Blackburn’s certification fails to comply with the requirements of 28 

U.S.C. § 1746. Under 28 U.S.C. § 1746, unsworn declarations have the 

same force and effect as a sworn affidavit only if “subscribed by [the 

declarant], as true under penalty of perjury, and dated, in 

substantially the following form: . . . ‘I declare (or certify, 

verify, or state) under penalty of perjury that the foregoing is true 

and correct. Executed on (date). (Signature).’” Id. Attorney 

Blackburn’s certification is not dated and it does not declare under 

penalty of perjury that the statements contained in the certification 

are true and correct. Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 17. 

This failure violates the strict requirements of Section 1746 and the 

Court therefore need not consider this defective declaration. See, 

e.g., Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994) (excluding from 

consideration affidavits that were subscribed under penalty of 

perjury, but were undated). Having failed to offer a proper 

declaration, plaintiffs have not complied with Rule 56(d). 

 Even considering the substance of Attorney Blackburn’s 

certification, plaintiffs’ request for additional time to conduct 

discovery is nevertheless without merit. Plaintiffs seek to depose 

four identified individuals, to depose unidentified “additional 

parties,” and to secure documents that were requested from the ARC 

defendants but which have allegedly not been produced. Plaintiffs’ 

Rule 16(b) and 56(d) Motion, p. 17. The certification does not, 

however, specify what documents are needed and it fails to identify 

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the “additional parties” sought to be deposed. The certification also 

fails to explain why any of the requested discovery is necessary to 

enable plaintiffs to respond to the motions for summary judgment or 

how plaintiffs expect those materials to help in opposing summary 

judgment.3

 The certification also fails to set forth any reason 

whatsoever why plaintiffs need additional time to respond to the RCEMA 

defendants’ motion for summary judgment. Attorney Blackburn’s 

certification simply lacks the specificity required by Rule 56(d). 

See Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004) (“Bare 

allegations or vague assertions of the need for discovery are not 

enough. . . . In order to fulfill the requirements of Fed. R. Civ. P. 

56[d], [the movant] must state with ‘some precision the materials he 

hopes to obtain with further discovery, and exactly how he expects 

those materials would help him in opposing summary judgment.’”) 

(quoting Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 

1144 (Fed. Cir. 1996)). 

 Even considering the substance of Plaintiffs’ Rule 16(b) and 

56(d) Motion, plaintiffs’ request for additional time to conduct 

discovery is without merit. Plaintiffs’ motion makes the same 

arguments for an extension of time to complete discovery under Rule 

56(d) as it does under Rule 16(b). Compare id. with Reply of 

 

3

 Plaintiffs have in fact responded to defendants’ motions for summary 

judgment. The responses, which do not comply with the “Limitation Upon 

Length of Memoranda” requirements of S.D. Ohio Rule 7.2, specifically state 

that the “[e]vidence in this case is sufficient to establish” a genuine issue 

of material fact. Plaintiffs’ Memorandum Contra to Defendants, Ross County 

Emergency Management Agency’s and David Bethel’s Motion for Summary Judgment, 

Doc. No. 99, p. 3. See also id. at pp. 13, 17-19; Plaintiffs’ Memorandum 

Contra to Defendants, American Red Cross’ and Mary McCord’s Motion for 

Summary Judgment, Doc. No. 98, pp. 10, 16-18. 

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Plaintiffs to Defendants Ross County Emergency Agency and David 

Bethel’s Memorandum Contra Motion of Plaintiffs for Extension of Time 

to Respond to Motions for Summary Judgment and for Extension of 

Discovery Cut-off Period, Doc. No. 104, p. 4 (“This argument is 

puzzling to Plaintiffs as Plaintiffs’ Motion contains 16 pages setting 

forth Plaintiffs’ arguments of why they have good cause for seeking an 

extension of discovery in this case . . . .”). As the record makes 

clear, plaintiffs have not been diligent in pursuing discovery and, 

although plaintiffs criticize the Court’s discovery orders, see

Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 14 (“[T]he Court’s initial 

order limiting the discovery Plaintiffs could conduct and the Court’s 

order denying an extension of the last discovery cut-off date also 

make it impossible for Plaintiff[s] to adequately oppose Defendants’ 

Motion for Summary Judgment.”), p. 15 (“[T]he Court Order of September 

19, 2012 (Doc. #60) limited the ability of Plaintiffs to obtain 

discovery in regard to their claims against the RCEMA Defendants. 

Effectively, the Court Order of December 17, 2012, determines this 

case in favor of the Defendants and makes it impossible for Plaintiffs 

to adequately respond to Defendants’ Motions for Summary Judgment.”), 

plaintiffs did not file objections to those orders. See Fed. R. Civ. 

P. 72(a). 

 Under the circumstances, plaintiffs have failed to carry their 

burden under Rule 56(d) to show an inability to present facts 

essential to justify their opposition to defendants’ motions for 

summary judgment. 

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WHEREFORE, based on the foregoing, Plaintiffs’ Motion for an 

Extension or Sanctions, Doc. No. 89, is DENIED. Plaintiffs’ Rule 

16(b) and 56(d) Motion, Doc. No. 97, is DENIED. 

 

March 20, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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